Hunsaker v. Jimerson et al

Filing 143

ORDER. Plaintiffs Motion to Compel Disclosure 88 is denied. Plaintiffs Motion to Compel Discovery 121 is granted in part and denied in part. the Plaintiffs Motion for Reconsideration of Defendants Motion for Enlargement of Time and to Strike Def endants Response to Plaintiffs Motion for Leave to Amend Third Amended Complaint, to Join Additional Parties and to File Fourth Amended Complaint 90 is denied. The plaintiffs Motion for Order Granting Court Reporter Access to Correctional Facility 103 is denied. The plaintiffs Motion for Extension of Time to Disclose Expert Witnesses Pursuant to Fed.R.Civ.P. 26(a)(2) 98 , Second Motion for Extension of Time to Disclose Expert Witnesses Pursuant to Fed.R.Civ.P. 26(a)(2) 122 , Motion for Ex tension of Time to Disclose Rebuttal Expert Witnesses Pursuant to Fed.R.Civ.P. 26(a)(2) 115 , Second Motion to Modify Scheduling Order 120 , and Motion for Extension of Time to Complete Discovery 122 are granted. The plaintiffs Motion to Set Hearing RE: Oral Argument and Disposition of Pending Motions 134 is denied as moot. By Magistrate Judge Michael J. Watanabe on 5/24/2011.(sah, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 08-cv-01479-REB-MJW

WILLIAM J. HUNSAKER, JR.,
Plaintiff,
v.
JAMES JIMERSON,
MICHELLE NYCZ,
ELIZABETH LIMBRIS,
CATHIE HOLST,
ARISTEDES ZAVARAS, AND
KEN MILYARD,
Defendants.

MINUTE ORDER
Entered by Magistrate Judge Michael J. Watanabe
It is hereby ORDERED that the plaintiff’s Motion to Compel Disclosure (Docket
No. 88) is denied. In this case, the plaintiff, a convicted sex offender, challenges
defendants’ censorship and denial of numerous issues of various publications based
upon determinations that the material was contrary to plaintiff’s rehabilitative interests
and goals as a sex offender. In this motion to compel, plaintiff apparently seeks
production of such withheld publications. Plaintiff states that defendants provided him
with their Privilege Log in which approximately 328 pages of documents are claimed to
be privileged from disclosure “[b]ecause the threshold issue involved in this case is
whether Plaintiff is allowed to possess these items, censored portions of the
publications cannot be produced to the Plaintiff. Production of the materials to Plaintiff
as a result of litigation would defeat the purpose of Administrative Regulation 300-26.”
(Docket No. 88 at 2). This court agrees with the defendants that production of these
materials would defeat the Administrative Regulation. Inmates cannot be permitted to
circumvent and defeat this regulation and the penological purpose behind it merely by
commencing litigation with respect to the withheld mail. Plaintiff’s motion to compel
should thus be denied.
It is further ORDERED that plaintiff’s Motion to Compel Discovery (Docket No.
121) is granted in part and denied in part as follows. Plaintiff seeks an order
compelling defendants to answer plaintiff’s interrogatories 1 and 5 and to produce all

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non-privileged responsive documents to plaintiff’s request for production of documents
1, 3, and 4.
The motion is granted solely with respect to interrogatory no. 1 and request for
production no. 3 as follows. Defendants shall forthwith make the necessary
arrangements to permit plaintiff to have a supervised review of the requested
Recommended Rehabilitation Report/Diagnostic Summary in accordance with § 17-40103(2), C.R.S. Defendants shall file a status report with the court advising when such
review has taken place.
The motion is denied in all other respects as set forth below.
With regard to interrogatory no. 5, in which plaintiff asks for the names of all sex
offenders incarcerated in the CDOC from September 2006 to the present who maintain
subscriptions and received uncensored issues of specified magazines, defendants need
not answer further. The request is unduly burdensome. Defendants have responded
that “[i]nformation is not tracked by what reading material is allowed, but rather by what
has been reviewed by the reading committee for individual offenders for all criteria. In
order to obtain the information requested, Defendants would be required to review every
sex offender’s personal subscriptions.” (Docket No. 121 at 4).
With regard to request for production no. 1, which seeks all of the reading
material addressed to plaintiff and censored during his incarceration in CDOC from
September 2006 to the present, defendants need not produce the requested
documents. As stated with regard to the plaintiff’s other motion to compel, requiring
such production would circumvent and defeat the administrative regulation and the
penological purpose behind it merely by commencing litigation with respect to the
withheld mail.
It is further ORDERED that the plaintiff’s Motion for Reconsideration of
Defendants’ Motion for Enlargement of Time and to Strike Defendants’ Response to
Plaintiff’s Motion for Leave to Amend Third Amended Complaint, to Join Additional
Parties and to File Fourth Amended Complaint (Docket No. 90) is denied.
It is further ORDERED that the plaintiff’s Motion for Order Granting Court
Reporter Access to Correctional Facility (Docket No. 103) is denied. A court order is
not required for such access. In their response, the defendants have detailed the
requirements for admission to the facility, which are governed by Administrative
Regulation 750-03, a copy of which defendants attached to their response. Plaintiff has
had sufficient time to comply with such requirements that were provided to him by the
defendants.
It is further ORDERED that the plaintiff’s Motion for Extension of Time to Disclose
Expert Witnesses Pursuant to Fed.R.Civ.P. 26(a)(2) (Docket No. 98), Second Motion

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for Extension of Time to Disclose Expert Witnesses Pursuant to Fed.R.Civ.P. 26(a)(2)
(Docket No. 112), Motion for Extension of Time to Disclose Rebuttal Expert Witnesses
Pursuant to Fed.R.Civ.P. 26(a)(2) (Docket No. 115), Second Motion to Modify
Scheduling Order (Docket No. 120), and Motion for Extension of Time to Complete
Discovery (Docket No. 122) are granted as follows:
The deadline for completion of discovery is extended up to and including
June 24, 2011. The deadline for disclosure of expert witnesses is extended up to
and including June 24, 2011. Rebuttal experts shall be disclosed on or before
July 15, 2011. Dispositive motions shall be filed on or before July 15, 2011. The
final pretrial conference set for June 28, 2011, is vacated and reset to July 19,
2011, at 9:30 a.m. The proposed final pretrial order shall be submitted on or
before 12 noon on July 18, 2011. The trial preparation conference and trial dates
remain unchanged unless otherwise ordered by Judge Blackburn.
It is further ORDERED that the plaintiff’s Motion to Set Hearing RE: Oral
Argument and Disposition of Pending Motions (Docket No. 134) is denied as moot.

Date: May 24, 2011